Abortion overtakes energy as N. Dakota may topple Roe

By Esmé E. Deprez

Published 7:39 pm, Sunday, April 14, 2013

North Dakota, which has fewer inhabitants than Columbus, Ohio, was until recently best known for the oil boom consuming its western half and creating a $1.6 billion surplus equivalent to more than $2,200 per resident.

It's now become the center of the national debate over abortion. Lawyers and activists see a new law passed there - which would prohibit the procedure once a fetal heartbeat can be detected, as early as six weeks - as a step toward toppling Roe v. Wade, the U.S. Supreme Court's 1973 decision legalizing a woman's right to end her pregnancy.

"We have opened up Pandora's box," state Representative Jon Nelson, a farmer, said the other day to a Republican colleague on the House floor in Bismarck.

The law is the most concerted effort by a state to directly challenge the high court's abortion rulings, which said states can regulate the procedure but not ban it outright before a fetus is viable outside the womb. Legislators in 14 states, including Alabama, South Carolina, Iowa and Mississippi, introduced such provisions in the first three months of this year, according to the New York-based Guttmacher Institute, which tracks abortion legislation.

Opponents call North Dakota's the most extreme measure so far in a record flurry of abortion restrictions that Republican- controlled legislatures have passed in the past three years.

"As they proliferate, it's increasingly difficult for the Supreme Court to ignore them," said Julie Nice, a constitutional law professor at the University of San Francisco School of Law.

The North Dakota law makes it a felony for a doctor to perform a nonemergency abortion once a fetal heartbeat can be detected, as early as six weeks into a pregnancy, with no exceptions for victims of rape or incest. It's the narrowest window of any state, prohibiting terminations some four months earlier than the current legal limit.

In Bismarck, the capital, lawmakers have been asked by Republican Governor Jack Dalrymple to set aside money to defend the measure, even as many, including Weisz and Nelson, predict a court will strike it down. Abortion-rights advocates plan to sue to block the law before it takes effect Aug. 1.

Expert Testimony

Attorney General Wayne Stenehjem, whom abortion-rights supporters viewed favorably during his 24 years in North Dakota's legislature, estimates he'll need at least $400,000 to defend the law. The state might have to reimburse plaintiffs' attorney fees if it loses in federal court, ballooning that price tag further, Stenehjem said in an interview.

"You have to have some expensive medical expert testimony, and that can be as expensive as any of the lawyers' fees," he said.

The New York-based Center for Reproductive Rights, which fights abortion laws in court for free on behalf of providers, will represent Fargo's Red River Women's Clinic in arguing against the six-week ban.

The law would shut down Red River, the state's sole abortion clinic since 2001, said director Tammi Kromenaker. More than 90 percent of procedures performed there are abortions, a majority of which take place after six weeks, when a fetus is about the size of a dime. Words of support and enough donations to pay for a full year of local counsel have poured in from around the world, she said.

"Sometimes we feel so isolated in little North Dakota," said Kromenaker, standing before a wall of taped-up greeting cards and letters of encouragement. "To know that people from all over are paying attention and saying this needs to stop? Oh my gosh, that makes you feel good."

North Dakota, home to about 700,000 residents, is already one the 10 states that the Center for Reproductive Rights is battling in court. A trial is set to begin tomorrow in county court over a law that restricts the dispensing of abortion- inducing drugs, which a judge has blocked since 2011.

This year, North Dakota's legislature, where Republicans outnumber Democrats 3-to-1, passed four other abortion-related measures in addition to the six-week ban.

Forty years ago, the Roe v. Wade ruling said women have a right to privacy to terminate pregnancies up until a fetus is viable outside the womb, then considered to be about 26 weeks. Technological advancements have since reduced that limit to around 23 or 24 weeks.

A ruling based on such a fluid marker is vulnerable, said Mathew Staver, who argued on behalf of clinic protesters before the Supreme Court in 1994. He's the founder of Liberty Counsel, an Orlando, Florida-based Christian nonprofit specializing in anti-abortion litigation, which has offered free assistance to North Dakota and Arkansas, where lawmakers passed a 12-week ban last month.

"Viability is not a determination on the value of life or whether there is a life," Staver said. "It's only a reflection of the available medical technology."

Instead, abortion rights should be attacked on the grounds that the beginning of life should be measured by the same standard used to determine when it ends: a heartbeat, he said.

If an abortion case reaches the Supreme Court, there's no guarantee the justices would be willing to hear it.

That doesn't deter Staver. In charting a path toward toppling Roe, he takes comfort in another landmark decision on a similarly contentious issue: guns. Thirty years ago, few predicted the high court would back the individual right to bear arms. Proponents pressed on anyway, and a diverse chorus of intellectual leaders and legal scholars followed.

In 2008, District of Columbia v. Heller marked the first declaration by the court that the Second Amendment of the Constitution protected the gun rights of individuals, not just militias.

Critics of North Dakota's law, including assistant Senate Minority Leader Mac Schneider, say it's hypocritical that self- branded fiscal conservatives, who dominate the legislature and sponsored the bills, will waste taxpayer money to defend them. Representative Kathy Hawken, who calls herself a moderate Republican, argues that money should be put to better use, such as to alleviate shortages of child care and housing.

"It's mind-boggling to me that we're not funding things we say are our priorities, like children already born," Hawken said over dinner near the statehouse. "We don't overfund any social service."

Others say cost shouldn't be a factor.

"Reducing life to economic terms is ridiculous," said Senator Margaret Sitte, a Republican who sponsored a personhood measure to be put before voters next year.

For Staver, the anti-abortion attorney, the campaign in North Dakota is just the beginning.

"There's always going to be people who say this isn't the right time," he said. "You can't build the house unless you start with one brick."